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The Many Faces of International Legalization

American Society of International Law Proceedings, Vol. 92, p. 57, 1998

Abstract:

The legalization of international relations is a highly variable phenomenon. “Legalization” includes a wide range of normative and institutional arrangements, from “hard” international legal rules enforceable in judicial or quasi-judicial fora, through “soft law” of various types, to arrangements that share some characteristics of law, but are not legally binding. This essay summarizes research -- undertaken jointly with Duncan Snidal of the University of Chicago -- that is part of an interdisciplinary project joining political scientists specializing in international relations with several legal scholars. The project is designed to identify and analyze the causes and effects of the “legalization” of international politics, with an emphasis on the effects of legalization within domestic political systems.

We posit that legalization is a form of institutionalization defined along three dimensions: obligation, precision and delegation. In our theory, each of these three attributes is a matter of degree and gradation, and each can vary independently. We illustrate a multidimensional continuum, ranging from the complete absence of law, where none of the attributes exist, through various forms of “quasi” and “soft” legalization to “hard law” where all three properties are maximized. The central puzzle in analyzing legalization is why different types of legalization are utilized in different circumstances. Our first steps toward an answer are organized in three broad functional categories: levels of legalization as rational responses to the contracting environment, soft legalization as a way to limit “sovereignty costs” of states, and types of legalization analyzed from the perspective of non-state actors.